Feinstein Accuses Spooks of Spying on Senate

A test of the U.S. Constitution's balance of powers provision has taken shape in the form of a dispute between the U.S. Senate Intelligence Committee and the CIA. Committee Chair Diane Feinstein has alleged the CIA undermined an oversight investigation into the agency's activities by spying on and tampering with documents associated with the probe.

By John P. Mello Jr.
Mar 12, 2014 10:16 AM PT

A powerful U.S. senator has accused the CIA of spying on a network drive legislative staffers used to prepare a report on abuses -- including torture -- in the agency's detention and interrogation program.

The search may have violated not only the separation of powers clause of the U.S. Constitution, but also the Fourth Amendment prohibition against unreasonable search and seizures, the Computer Fraud and Abuse Act, and an executive order barring the CIA from conducting domestic searches and surveillance, Senate Intelligence Committee Chairman Diane Feinstein, D-Calif., told the Senate on Tuesday.

"The facts, as she describes them, certainly give reason to be concerned that there may have been violations of those laws," said Chris Anders, senior legislative counsel for the American Civil Liberties Union in Washington, D.C.

"That's a serious problem," he told TechNewsWorld.

"This relationship between Congress and the executive branch and the separation of powers between the two, is very fundamental to the protections that all of us enjoy under the Constitution," Anders said.

"What Sen. Feinstein was starting to reassert today as to the CIA was that Congress has an oversight role that is protected by the Constitution and will not be intimidated from carrying it out," he added.

'Beyond the Scope of Reason'

Feinstein maintained that the alleged intrusion by the CIA into the staffers' workspace has brought Congress to a defining moment in its ability to oversee the country's intelligence community.

"How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation's intelligence activities, or whether our work can be thwarted by those we oversee," she said.

"If the CIA is spying on committee staff in the course of their oversight, that undermines the committee's independence. That really turns its relationship with the CIA on its head," Scott Roehm, senior counsel for the Rule of Law Program at the bipartisan
Constitution Project, told TechNewsWorld.

Meanwhile, the CIA has denied any wrongdoing.

"We are not in any way, shape or form trying to thwart this report's progression release," CIA Director John O. Brennan said Tuesday in an interview with Andrea Mitchell, chief foreign affairs correspondent with NBC News.

"As far as the allegations of CIA hacking into Senate computers, nothing could be further from the truth. We wouldn't do that. That's beyond the scope of reason in terms of what we would do," he said.

As for the allegations that the CIA has broken constitutional and U.S. laws, "Appropriate authorities right now -- both inside of CIA as well as outside of CIA -- are looking at what CIA officers as well as [Senate] staff members did, and I defer to them to determine whether or not there was any violation of law or principle," Brennan responded.

"When the facts come out on this, I think a lot of people who are claiming that there has been this tremendous spying and monitoring and hacking will be proved wrong," he added.

Network Quagmire

Those facts appear to be muddied by the technology arrangement between Feinstein's committee staffers and the CIA. Staffers were allowed to view documents on CIA servers relevant to their probe of the agency's detention and interrogation program during the Bush administration. In addition, the staffers' work product was stored on CIA cyberturf but walled off from access by the agency.

"Those networks were CIA networks segmented to allow committee staff access to certain documents," Ben FitzGerald, senior fellow and director of the technology and national security program for the
Center for a New American Security, told TechNewsWorld.

"So the CIA is claiming that the review group accessed inappropriate information off their network, and the senator is saying information was inappropriately taken off the staff's network," he continued. "So everything is in this strange gray space where no one was hacked, no one was really spied on -- it's really just a jurisdictional document fight that's playing out in a technology context."

Whether or not any "hacking" was done, both sides are accusing each other of it, and both sides are denying it. "To be clear," Feinstein said, "the committee staff did not 'hack' into CIA computers to obtain [the Panetta] documents as has been suggested in the press. The documents were identified using the search tool provided by the CIA to search the documents provided to the committee."

Panetta Documents

During the course of its investigation, the staffers noticed that some documents they initially had access to would disappear from time to time. Some of those documents pertained to an internal review of the detention and interrogation program by former CIA Director Leon Panetta. That review acknowledged wrongdoing by the CIA in the program.

However, before the Panetta documents could be totally purged from view, Senate staffers printed a portion of a draft of the Panetta Review and transported it to their Senate offices. The files for the printout may have been the target of the alleged illegal search by the CIA of Senate staffers' workspace.

The Panetta Review is very important, according to Feinstein, because it undermines some important parts of her panel's 6,300-page report questioned by the CIA.

"Some of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA's own Internal Panetta Review," Feinstein said.

Feinstein's allegations are disturbing to some seeking release of the facts around the CIA's treatment of detainees in the post 9-11 years.

"It's very troubling that the overseers of spying are now being spied on," Suzanne Nossel, executive director of the
PEN American Center, told TechNewsWorld. "Meanwhile, this long-delayed, very important investigation has become a political football between the Congress and CIA."

If the CIA did spy on Senate staffers, it may have made a political mistake it will regret.

"It's particularly extraordinary that Sen. Feinstein is formally going before the Senate and stating her complaints because she has been such a defender of the intelligence community and the CIA in particular," James Barnett, a former Navy rear admiral and head of the cybersecurity practice at
Venable, told TechNewsWorld.

John Mello is a freelance technology writer and contributor to Chief Security Officer magazine. You can connect with him on
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